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Harter v. Szykowny

Court of Appeals of Arkansas, Division I

December 10, 2014

HEIDI HARTER f/k/a HEIDI SZYKOWNY, APPELLANT
v.
DAVID J. SZYKOWNY, APPELLEE

APPEAL FROM THE CARROLL COUNTY CIRCUIT COURT, WESTERN DISTRICT. NO. DR-2013-28. HONORABLE GERALD K. CROW, JUDGE.

Parker Law Firm, by: Tim S. Parker, for appellant.

Thurman & Flanagin, by: Gregory A. Thurman, for appellee.

DAVID M. GLOVER, Judge. PITTMAN and WHITEAKER, JJ., agree.

OPINION

Page 216

DAVID M. GLOVER, Judge

Heidi Harter appeals the trial court's October 25, 2013 dismissal of her petition for registration and enforcement of an April 12, 2011 judgment from the State of Kansas, which was a decree of divorce[1] concerning Heidi and appellee, David Szykowny. Heidi raises three points of appeal: 1) the trial court erred in sua sponte dismissing her petition without any dispositive motions from David; 2) the trial court's actions in sua sponte dismissing her petition violated both the Full Faith and Credit Clause of the United States Constitution and the Uniform Enforcement of Foreign Judgments Act of the State of Arkansas; and 3) the trial court's actions in sua sponte dismissing her petition violated the Uniform Child Custody Jurisdiction and Enforcement Act of the State of Arkansas. We reverse the trial court's dismissal and remand for proceedings consistent with this opinion.

Background

The Kansas decree granted joint custody of the parties' two minor children to Heidi and David, with Heidi having primary

Page 217

custody of the children. Paragraph 7 of the decree, titled " Children," provides in part: " The State of Kansas and this Court have continuing jurisdiction over the minor children of the parties pursuant to the Uniform Child Custody Jurisdiction Act. K.S.A. 38-1301 et seq." (Emphasis added.) Paragraph 10. i. of the decree provides: " Continuing Jurisdiction of the Court for Modification. The parties are advised and understand that any provision related to legal custody, residential custody, parenting time, child support, education and other matters related to the minor children shall be subject to the continuing jurisdiction of this Court as provided by law." (Emphasis added.) Paragraph 12 of the Kansas decree provides:

12. RETENTION OF CHILD CUSTODY JURISDICTION. Recognizing this Court to have jurisdiction over child custody matters to avoid future jurisdictional competition or conflict and to discourage continuing controversies over child custody and avoid re-litigation of custody decisions and to build stability and consistency for the minor children, the parties agree and this Court Orders, that until this Court orders otherwise, the State of Kansas and this Court shall retain jurisdiction over future proceedings involving custody and visitation. This Agreement in no way limits the right of either parent having Primary Residential Custody of their child, to petition any Court for a change of jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJEA).

(Emphasis added.) Paragraph 14 provides in part that " [t]he Respondent shall make child support payments payable and send to: Kansas Payment Center, P.O. Box 758599, Topeka, Kansas 66675-5722." Paragraph 16 c. provides:

c. A change of the residence or the removal of a child as described in subsection (a) may be considered a material change of circumstances which justifies modification of prior order of legal custody, residency, child support or parenting time. In determining any motion seeking a modification of a prior order based on change of residence or removal as described in (a), the court shall consider all factors the court deems appropriate including, but not limited to: (1) The effect of the move on the best interests of the child; (2) the effect of the move on any party having rights granted pursuant to K.S.A. 60-1610, and ...

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